Affirmation of Ira Finkelstein in Further Support of Motion for Summary Judgment

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SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF QUEENS 

THE COUNCIL OF THE CITY OF NEW YORK, : 

PETER F. VALLONE, SPEAKER OF THE . Index No.: 004897/96 

COUNCIL, and ENOCH H. WILLIAMS, CHAIR OF: ; . 

THE COUNCIL HEALTH COMMITTEE, : 

Plaintiffs, 

-against- 

RUDOLPH W. GIULIANI, THE MAYOR OF THE, 

CITY OF NEW YORK, NEW YORK CITY HEALTH 

AND HOSPITALS CORPORATION, and NEW YORK 

CITY ECONOMIC DEVELOPMENT CORPORATION : 

Defendants. 

CAMPAIGN TO SAVE OUR PUBLIC HOSPITALS - 

QUEENS COALITION, an unincorporated : Index No. 10783/96 

association, by its member WILLIAM - 

MALLOY, CAMPAIGN TO SAVE OUR PUBLIC 

HOSPITALS - CONEY ISLAND HOSPITAL 

COALITION, an unincorporated assoc- 

ation, by its member PHILIP R. METLING, 

  

ANNE YELLIN, and MARILYN MOSSOP, : AFFIRMATION OF JRA A. 

: FINRELSTEIN IN FURTHER 

Plaintiffs, : SUPPORT OF MOTION 

-against- : FOR SUMMARY JUDGMENT 

RUDOLPH W. GIULIANI, THE MAYOR OF THE 

CITY OF NEW YORK, NEW YORK CITY HEALTH 

AND HOSPITALS CORPORATION, and NEW 

YORK CITY ECONOMIC DEVELOPMENT 

CORPORATION, 

Defendants. 

I, IRA A. FINKELSTEIN, an attorney admitted to practice 

before the Courts of the State of New York, affirm the following to 

be true, under penalty of perjury, pursuant § 2106 of the Civil 

Practice Law and Rules: 

1. I am a member of Tenzer Greenblatt LLP, attorneys for 

plaintiffs The Council of the City of New York, Peter Vallone, 

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Speaker of the Council, and Enoch H. Williams, Chair of the 

Council Health Committee (the "Council plaintiffs"), and I make 

thig Affirmation in further support of the Council plaintiffs’ 

motion for summary judgment. 

2. In particular, I wish to address a possibility, suggested 

by the nature and limited subject matter of the recent submissions 

by the defendants, that they may in the future assert that the 

complaints, the plaintiffs’ motions for summary judgment, and other 

proceedings herein did not afford them adequate notice of, and an 

opportunity to respond to, all of the issues upon which summary 

judgment is being sought by the plaintiffs or is being considered 

by the Court. 

3. On November 12, 1956, the Court held a telephone 

conference with the attorneys for all of the parties. 

Unfortunately, the subject matter of the November 12, 1996 

telephone conference was never recorded in any official order or 

document, and thus may not be fully apparent in the official record 

of these proceedings. Accordingly, the Council plaintiffs believe 

it advisable that the subject matter of the telephone confererice be 

made a matter of record. 

4. At the outset of the November 12, 1996 telephone 

conference, the Court informed the parties that in connection with 

its consideration of the parties’ submissions in support of their 

respective motions for summary judgment, it was considering the 

issue as to whether the Mavor's privatization proposal for the 

hospitals operated by the New York City Health and Hospitals 

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Corporation ("HHC") is nltra vires under the New York City Health 

and Hospitals Corporation Act (the "HHC Bet"). The Court stated 

that it was considering Shis igsue because of the statements of 

legislative intent submitted to the Court by the plaintiffs (in 

particular, Mayor Lindsay’s pledge that by adoption of the HEC Act 

the City was not getting out of the hospital business), and because 

of the possibility that the privatization program might effect a 

fundamental change from the statutory policies and goals of the HHC 

Act and the responsibilities of the HHC set forth therein, which 

changes can only be implemented by an amendment of the HHC Act by 

the State Legislature. 

4. After the Court orally notified the parties that it was 

considering ruling upon the ultra vixes issue, the parties orally 

get forth their respective positions. None of the parties 

objected to the appropriateness of the Court's consideration of 

this issue. The Court orally directed that the parties submit 

additional affidavits and/or memoranda of law addressing the ultra 

vires issue. With the assent of all parties, the Court established 

a schedule for filing additional papers, and responsive papers 

thereto, in order that the Court might carefully consider the issue 

and afford all of the parties a full and complete opportunity to 

address it. The Court also directed, at the urging of the 

defendants, that the parties also address in their additional 

submissions the defendants’ assertion that the privatization 

program was permitted under the express provisions of the HHC Act 

and/or City Charter § 1152(e). 

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5. The parties have since submitted papers and reply papers 

pursuant to the direction of the Court in the November 12 telephone 

conference. Accordingly, all of the parties received adequate 

notice of the fact that the Court was considering the question of 

whether the privatization program is ultra vireg, and were afforded 

a full opportunity to address it thereafter in their additional 

submissions. No party has been prejudiced, and the issue is ripe 

for adjudication. 

Dated: New York, New York 
December 2, 1956 

“IRA A. FINKELSTEIN   

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